(dissenting in part, concurring in part).
I concur in the majority’s conclusion that appellant Blue’s talk to the Seward longshoremen was not immoral conduct. I dissent from the majority’s determination that appellant Watts’ solicitation of his fellow teachers, the Framptons, constituted immorality; from the decision that both appellants “were guilty of immorality * * * for their part in compiling, reproducing and distributing the Open Letter”; and I also dissent from the majority’s holding that appellants “were guilty of substantial noncompliance with Board Regulation E (7).”
AS TO APPELLANTS’ IMMORALITY IN THE COMPILATION, REPRODUCTION AND DISTRIBUTION OF THE MAY 18, 1959, OPEN LETTER
In the March 1960 bills of particulars accompanying the notices of nonretention which were sent by the Seward School Board, appellants were in part charged with having engaged in “acts of immorality which have tended to bring * * * [appellants] and the teaching profession into public disgrace and disrespect.” As to the May 18, 1959, Open Letter, it was particularized that appellants had
assisted in the printing and distribution of false, distorted and misleading statements in a ‘Bill of Particulars’ against the Superintendent of the Seward Public Schools, with the intent of injurying the professional standing of the Superintendent and destroying community and pupil confidence in the administration of the schools. Such statements contained in this Bill of Particulars tended to destroy community confidence in the management of school affairs by the School Board.
*611This ‘Bill of Particulars’ was circulated during 1959 in the community of Seward.1
When the matter was before the superior court in December 1961 on appellants’ initial petition for review, Judge James M. Fitzgerald held in part that:
[A]s a matter of law, the circulation by the petitioners of the Open Letter to the Seward School Board under date of May 18, 1959, is not immoral conduct within the meaning of the statute. I also conclude that, as a matter of law, the circulation of a petition seeking the recall of members of the Seward School Board is not immoral conduct within the meaning of the statute.2
The case was then remanded to the Appeals Committee of the State Board of Education for additional findings of fact and conclusions of law. After this was accomplished, appellants again sought review in the superior court and in September 1963, Judge Hubert A. Gilbert denied appellants’ second petition for review. Appellants then appealed to this court from the denial of their second petition for review.
It is of particular significance that ap-pellees failed to cross-appeal from Judge Fitzgerald’s holding that as a matter of law appellants’ actions in regard to the Open' Letter and recall petition did not constitute immoral conduct. None of the briefs which were initially presented to this court made any reference to these rulings in regard to the Open Letter and recall petition.3
This definition agrees generally with that adopted by the ⅜ * * [Supreme Court of Oklahoma] in Warkentin vs. Kleinwachter [166 Okl. 218], 27 P.2d 160. That court found immoral conduct to be that conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community. Judged in the light of these standards, the circulation of the open letter to the Seward School Board, under date of May 18, 1969, is not immoral conduct; nor is circulating a petition seeking the recall of members of a school board immoral conduct within the meaning of the statute. This is not to say that the conduct of tbe petitioners may not be cause for non-retention under other provisions of the statute.
Note that the bills of particulars which accompanied tbe notices of nonretention also specified that appellants were guilty of immoral acts because while teachers
in the Seward Public Schools, [they] carried to the people of the community and personally signed a petition seeking a recall of the Seward School Board on charges that could not be substantiated and which were false.
After the United States Supreme Court vacated the judgment which had been entered in Watts v. Seward School Bd.4 and had remanded the case,5 this court requested further briefs. In none of the additional briefs, which were thereafter filed, was issue made of Judge Fitzgerald’s 1961 ruling that appellants were not guilty of immoral conduct resulting from any part they played in authoring, reproducing, and circulating the Open Letter of May 28, 1959.6
Thus, without any attempt to distinguish this court’s prior precedents, and without the benefit of an adversary presentation (i.e., statement of points, specification of errors, and arguments in appellate briefs), the majority has unilaterally decided to reverse Judge Fitzgerald’s holding as to the Open Letter. It is interesting that the majority isolates the Open Letter for this singular appellate treatment without attempting any reference to the superior *612court’s decision in regard to the petition for recall.
In Theodore v. Zurich Gen. Acc. & Liab. Ins. Co.,7 this court said:
If Zurich had felt that that decision was erroneous, it might have taken a cross-appeal to this court. But it failed to do so, and it thus waived its objection that service of process was improper or insufficient.8
Four years later in Alaska Brick Co. v. McCoy,9 the Zurich rule was again adhered to. At page 457, this court stated:
Appellee did not take a cross appeal. Nor did he even file a cross statement of points in appellant’s appeal, which at least would have alerted appellant to the existence of the issue as to attorney’s fees so that additional portions of the record might have been designated if appropriate. Orderly procedure will not permit an appellee to attack a judgment for the first time in his brief in the appellant’s appeal. We shall not pass upon the matter as to the attorney’s fees allowed by the trial court.
See also the following authorities which have reached similar conclusions as to the necessity of perfecting cross-appeals. Arkansas Fuel Oil Co. v. Leisk, 133 F.2d 79 (5th Cir. 1943); Cochran v. M & M Transp. Co., 110 F.2d 519 (1st Cir. 1940); United States v. Bentley, 107 F.2d 382 (2d Cir. 1939); Smith v. Boise City, 104 F.2d 933 (9th Cir. 1939).
In determining to reverse the superior court on this point, the majority not only has disregarded the holdings of Zurich and Alaska Brick but by virtue of its reversal has assigned to limbo a vast body of this court’s prior literature, including that portion of this court’s original opinion in Watts v. Seward School Bd.10 where it was said:
The appellants voiced a broad and general claim in their brief on appeal that their constitutionl rights to assemble and speak freely have been abridged in this case and that they have been deprived of their personal liberties and property rights without due process of law. They treat the subject in a very cursory fashion and cite us to no case law in support of their claim. Under these circumstances we need not consider the point.11
In addition to Watts, the decisions of this court are relatively legion in which issues were not resolved because of the parties’ failure to raise proper objections in the trial court, or because of improper statements of points on appeal, or because of improper specifications of error, or due tO' the lack of adequate treatment of specific issues in their appellate briefs. See: Sanuita v. Common Laborer’s & Hod Carriers Union, 402 P.2d 199 (Alaska 1965) ; Meyst v. East Fifth Ave. Serv., 401 P.2d 430 (Alaska 1965); Alaska Brick Co. v. McCoy, 400 P.2d 454 (Alaska 1965); Alaska State Housing Authority v. Vincent, 396 P.2d 531 (Alaska 1964) ; Merl F. Thomas Sons, Inc. v. State, 396 P.2d 76 (Alaska 1964); Williams v. DeLay, 395 P.2d 839 (Alaska 1964) ; Apex Concrete Co. v. Bray, 395 P.2d 514 (Alaska 1964); Buza v. Columbia Lumber Co., 395 P.2d 511 (Alaska 1964); Saxton v. Harris, 395 P.2d 71 (Alaska 1964); Orbeck v. Wheeler Constr. Co., 394 P.2d 781 (Alaska 1964); Higgins v. Lantz, 394 P.2d 776 (Alaska 1964); Preferred Gen. Agency, Inc. v. Raffetto, 391 P.2d 951 (Alaska 1964); Thomson v. Wheeler Constr. Co., 385 P. 2d 111 (Alaska 1963); Freightways Ter*613minal Co. v. Industrial & Commercial Constr., Inc., 381 P.2d 977 (Alaska 1963) ; Gregory v. Padilla, 379 P.2d 951 (Alaska 1963) ; Pollastrine v. Severance, 375 P.2d 528 (Alaska 1962); Parks v. Brown, 368 P.2d 220 (Alaska 1962); Veal v. Newlin, 367 P.2d 155 (Alaska 1961); Bidwell v. Scheele, 355 P.2d 584 (Alaska 1960).
On the basis of the holdings in Theodore v. Zurich Gen. Acc. & Liab. Ins. Co.12 and Alaska Brick Co. v. McCoy13 and the above sampling of authorities, and in light of the fact that appellees never cross-appealed from the superior court’s holding that appellants’ part in writing, reproducing and distributing the Open Letter was not immoral conduct, I am of the opinion that this issue is not properly before us and that Judge Fitzerald’s decision on this point should therefore remain undisturbed. In my view it was im appropriate for the majority to have decided an issue of such importance without the benefit of an adversary presentation and. in circumstances which have denied appellants any opportunity to argue this question.14
AS TO APPELLANT WATTS’ IMMORALITY ARISING FROM “HIS ACTIVITIES IN SOLICITING TEACHERS TO JOIN IN A PRIVATE MOVE TO OUST THE SUPERINTENDENT”'
The majority has concluded that appellant Watts’ conduct in soliciting the Framptons is within AS 14.20.170(a) (2)’s definition of immorality as a cause for nonretention. I think it appropriate to again point out that this statute, before amendment, had defined immorality as
conduct of the person tending to bring the individual concerned or the teaching profession into public disgrace or disrespect * * *.
At the second hearing before the Seward School Board, Benjamin Frampton testified that on April 28, 1959, he ,
went with Mr. Watts down to Mrs. Frampton’s room and there he stated that he had been sent as a representative of the group * * * he had been a friend of ours for a long time, tie wanted to know if we would go along with the movement to oust Mr. Fabri-oius. He stated that he knew the certification of teachers is not the real issue. He said he knew I was in the middle and didn’t want me to get hurt. He said that they were quite sure they could get Mr. Fabricius and wanted to know if we would go along with them. We told him at that time that we could see no reason why anyone should try to get Mr. Fabricius and we considered he was doing all right and would have take [sic] the stand of Mr. Frabricius and the school board. Then we asked Mr. Watts what group was going along with him. Then he said under the circumstances he would rather not say. I believe that was the conversation.15
The foregoing is the sum total of Watts’ immoral conduct in regard to the Frampton solicitation. The record further establishes that the only persons present during this entire conversation were Mr. and Mrs. Frampton and appellant Watts. It is undisputed that this conversation took place in Mrs. Frampton’s classroom. As to the time of the conversation Mr. Frampton testified that:
It was April 28, 1959 before school, that morning.
I can’t say definitely, I imagine it was somewhere between 8:30 and 9:00 however.
*614Mr. Frampton was then asked whether in his “experience as a teacher and a principal in the Seward public school system,” the period between 8:30 and 9:00 was “during school hours for a teacher.” The witness then testified “According to our regulations it would have been”. Subsequently, on cross-examination, Mr. Frampton testified that the conversation with appellant Watts took place before school that morning, and also testified “It’s possible I couldn't say” that the conversation with Watts took place prior to 8:30 a. m.16 In any event, the Seward School Board made no finding as to the time this conversation took place. Yet on the state of this, at best, equivocal record the majority apparently lays great stress on the fact that this conversation took place “during school hours.” More particularly, the majority concluded that Watts’ conduct in soliciting the Framp-tons
on school premises, during school hours, to join in a private movement to attempt to oust Superintendent Fabricius was immoral conduct within the statutory definition.
Assuming the Framptons’ version of the April 28, 1959, conversation is accurate, I fail to ascertain how this conversation among three teachers (before any school children were present) can be characterized as conduct which tended to bring the individual concerned or the teaching profession into public disgrace or disrespect. Taking the majority’s definition of immorality as the applicable standard, I am of the opinion that Watts’ contribution to the questioned conversation was not immoral conduct as a matter of law.
Precisely what concrete meaning is to be given to the statutory definition of immorality set forth in AS 14.20.170(a) (2) is never made clear by the majority. The authorities relied upon by the majority all define immorality in terms of conduct which is offensive to the community’s morals or inconsistent with moral recti-tud e.17 Appeal of Schneider,18 also relied upon by the majority, stated that the synonyms of “immorality” are “corrupt”, “indecedent”, “depraved”, and “dissolute.” Yet, after discussing these authorities, the majority concludes that “For the purposes of this case we must accept * * * the legislative definition provided.” The opinion does indicate that the standard for determining immorality is “one of degree depending upon the rules of society and to some extent upon the mores of the particular community.”
The majority’s conclusion that Watts’ conversation with the Framptons was tantamount to immoral conduct is apparently based on three grounds. First, it was reasoned that the objective (ouster of the superintendent) was not recognized by the Seward District Teachers Association. As to this ground, we are not informed if this same conversation would be held moral if the Teachers’ Association had as one of its objectives the removal of the superintendent. Secondly, the majority reasons that since “orderly”, “honorable”, and “democratic” regulations were available for removal of the superintendent, Watts’ conversation with the Framptons was therefore immoral. I take this statement to mean that any violation of a school board regulation is equatable to immoral conduct. Thirdly, “when all of the facts became known” (note it is not stated what method of revelation is relevant or the pertinent scope of such revelation) Watts’ conversation “during school hours on school premises, were degrading, unprofessional, and detrimental to morale and discipline and could only result in loss of respect by the public for him and his pro- *615‘ fession.” As to this conclusion, the majority does not disclose which rules of society, or mores of a given community, compelled such characterizations. Similarly the reader is not informed if any one of these three categories in and of itself is sufficient to metamorphize Watts’ conversation into immoral speech.
As pointed out earlier, what occurred was a conversation among three adults, in the absence of any school children. After Watts made known his purpose, the Framp-tons unequivocally rejected Watts’ request to join the movement and then and there articulated their support of the superintendent. To characterize Watts’ conduct, “corrupt”, “indecent”, “depraved”, or “dissolute” is simply not borne out by the record. For the majority to conclude that Watts’ conversation was “degrading”, “unprofessional”, “detrimental to morale and discipline” and resulted in loss of respect by the public is equally devoid of any substantiation in the record and appears to be the product of considerable speculation.
In short, assuming the truth of all the facts relied upon by the majority, and taking as the applicable standard their adoption of the literal statutory definition of immorality, I am of the opinion that appellant’s conversation with the Framptons did not tend to bring him or his profession into public disgrace or disrespect. Here all that was involved was speech directed toward requesting help in bringing about a change in school administration.
AS TO THE HOLDING THAT APPELLANTS’ FAILURE TO COMPLY WITH REGULATION E-7 OF THE SEWARD SCHOOL BOARD “WAS A SUFFICIENT INDEPENDENT CAUSE FOR THEIR NONRETENTION”
I cannot agree with the conclusion that appellants’ circulation of the Open Letter amounted to “substantial noncompliance” with the Board’s regulations.19
Regulation E-7 of section I of the Seward School Board provides:
Grievances, complaints and communications from employees shall be submitted to the Board through the Superintendent. Any employee or group of employees may at any time appeal to the Board. -
Regulation E-9 of the Board’s regulations reads:
Employees or groups of employees desir- ' ing to address the Board shall address their communication to the Superintendent and not to individual members of the Board, except that copies of any communication may be sent to all Board members.
Also pertinent is the finding of the Seward School Board that “the Open Letter to the Seward School Board was delivered to Superintendent George Fabricius at substantially the same time it was delivered to members of the School Board.”
The record demonstrates that Superintendent Fabricius (the author of the regulations in question) had considerable difficulty explaining the instances where either regulation E-7 or regulation E-9 was applicable. He encountered similar problems in defining the relationship between these two regulations. At one point in his testimony, Superintendent Fabricius was asked:
Mr. Walton: Let’s take the other regulations — assuming this is a regulation of the Board. Sub-paragraph 7 — that states that grievances, complaints, and communications shall be submitted to the Board through the Superintendent. Do I understand you to state that in your opinion, as the one who drafted this regulation, that paragraph is qualified by Paragraph 9, which says it’s OK to do it to the Board simultaneously-
Mr. Fabricius: Well, if you back to the other paragraph, it states there, it’s stated in there — my interpretation of *616it would be that it should be ’ to the Superintendent, but it doesn’t prevent you from at the same time sending it to the Board.20
A comparison of the text of Regulation E-7 with Regulation E-9 illuminates the uncertainties and ambiguities inherent in the Board’s regulations regarding the proper procedure to be followed by its employees in addressing grievances, complaints, and communications to the Board. On this basis alone I would reverse the Board’s finding that appellants were guilty of substantial noncompliance with Regulation E-7. The applicability of, and relationship between, the two regulations is at best uncertain. I find it unreasonable to ■conclude that appellants had failed to substantially comply with Regulation E-7 when the evidence shows that they had ■complied with the provisions of Regulation E-9; that the regulations themselves were ambiguous, and that contemporaneous interpretation of these two regulations by the Superintendent and the Seward School Board was to the effect that substantially simultaneous notification to the Board and the superintendent was sufficient compliance with Regulation E-7.21
Two other factors also lead me to differ with the majority’s holding in regard to Regulation E-7. First, there is nothing in the text of Regulation E-7 which prohibits an employee from making a public disclosure of any grievance, complaint, or communication which he has submitted to the Board, and as is pointed out subsequently, education, and in particular administration" of our schools, is a public issue as to which freedom of discussion is essential to the formation of public opinion. Secondly, in the crucial period during the weeks prior to the circulation of the Open Letter, the Seward School Board and the Superintendent had met with committees of the Seward District Teachers’ Association in regard to grievances pertaining to the nonretention of certain teachers. At no time during this period did either the Seward School Board or the Superintendent require compliance with Regulation E-7 as a procedural prerequisite to the Board’s receiving and hearing grievances, complaints, or communications from individuals.
In such circumstances I believe it to be basically unjust to hold appellants to the letter of Regulation E-7 which is ambiguous when read in conjunction with Regulation E-9 and one that had been, in practice, consistently disregarded by the Board during the period of time immediately preceding appellants’ circulation of the Open Letter.
AS TO LEGISLATION ENACTED BY THE ALASKA LEGISLATURE SUBSEQUENT TO THE PUBLICATION OF THIS COURT’S OPINION IN WATTS v. SEWARD SCHOOL BOARD
In petitioning the United States Supreme Court for certiorari, appellants asserted that their dismissals for allegedly immoral conduct unconstitutionally infringed upon “their rights to political expression guaranteed by the First and Fourteenth Amendments of the United States Constitution.” *617After observing that subsequent to the time appellants had filed their petition for certio-rari, the Alaska legislature had passed S.L.A.1965, chapters 14 and 41, which acts redefined “immorality” as a ground for the revocation of a teacher’s certificate and added a new section pertaining to the right of teachers to engage in comment and criticism as to school matters outside of school hours, the Supreme Court of the United States stated:22
We need not consider petitioners’ contentions at this time * * *.
This Court has held that supervening changes in state law that may be relevant to the disposition of a case may require that the cause be remanded for appropriate action by the state court. See, e. g., State of Missouri ex rel. Wabash R. Co. v. Public Service Comm’n, 273 U.S. 126, 131, 47 S.Ct. 311, 313, 71 L.Ed. 575, 577. Cf. Trunkline Gas Co. v. Hardin County, 375 U.S. 8, 84 S.Ct. 49, 11 L.Ed. 2d 38. Accordingly, it is appropriate to allow the Alaska court to consider the effect of the new Alaska statutes upon this case.23
the commission of an act which, under the laws of the state, constitutes a crime involving moral turpitude.
The Supreme Court of the United States’ mandate remanded the case to this court
in order that such proceedings may be had in the said cause, in conformity with the judgment of this Court above stated, as accord with right and justice, and the Constitution and laws of the United States.
Under this mandate this court was required to “consider the effect of the new Alaska statutes upon this case.”24 But this is not the full limit of our authority under this remand.25 This court is free to consider, if necessary, any undetermined issues, (such as the regulations issue) as well as to alter its previous determination of law in regard to the proper construction and permissible reach of AS 14.20.170(a) (2)⅛ “immorality” as a grounds for nonre-tention.26
*618It is well established that appellate courts, in the exercise of their jurisdiction, are empowered
not only to correct error in the judgment entered below, but to make such disposition of the case as justice may at this time require. * * * And in determining what justice now requires the court must consider the changes in fact and in law which have supervened since the decree was entered below.27
Also pertinent to resolution of the issues before us is the related doctrine of law of the case. In regard to this doctrine, the court in White v. Higgins 28 stated:
The doctrine of ‘law of the case’ is not an inexorable command. It ‘merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their powers.’ Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 * * * Though the power exists to reopen the points of law already decided, it is a power which will necessarily be exercised sparingly, and only in a clear instance of previous error, to prevent a manifest injustice. The doctrine of law of the case is normally a salutary one in the interest of economy of effort and of narrowing down the issues in successive stages of litigation. In the absence of exceptional circumstances, it would be unfortunate if on second appeal counsel felt free to argue de novo as a matter of course the points decided on previous appeal. See Great Western Telegraph Co. v. Burnham, 162 U.S. 339, 343, 344, 16 S.Ct. 850, 40 L.Ed. 991.29
In light of these principles and the supervening changes which have occurred in our education laws as a result of the en*619'actment of S.L.A.1965, chapters 14 and 41 and S.L.A.1966, chapter 104,1 am convinced that this court’s initial construction of “immorality” was not in accord with the legislature’s intent nor with the public policy of this state. To permit AS 14.20.170 (a) (2)’s definition of immorality to reach these acts of appellants which the majority by their affirmance have labeled immoral, in my view raises issues as to the constitutionality of such a sweeping application of the statute. We previously held that it is our duty to reasonably construe statutes to avoid a danger of unconstitutionality.30 I think this precept particularly appropriate here.
AS 14.20.170(a) (2)’s definition of “immorality” as conduct “tending to bring the individual concerned or the teaching profession into public disgrace or disrespect” is at best of doubtful significance and, potentially, of unlimited applicability. The Alaska legislature’s subsequent enactment of S.L.A.1965, chapter 41, and S.L.A.1966, chapter 104, has limited, in regard to the causes for revocation and nonretention, “immorality” to the commission of crimes involving moral turpitude. Our legislature, by virtue of its passage of S.L.A.1965, chapter 14, has also given statutory recognition to the policy of permitting teachers (outside of school hours) to comment on, and to criticize, school administrators, school boards, and any other public officer.
For the very first time in this case we now have the benefit of an unambiguous manifestation from the legislature concerning its intended delimitation of “immorality.” Also by virtue of the legislature’s enactment of S.L.A.1965, chapter 14, we have a clear statutory expression of public policy prohibiting restrictions upon the right of teachers to comment and criticize school administrators, school boards, or any other public official.
Under the Supreme Court of the UniteState’s mandate, and the authorities heretofore cited, I would hold that this court’s original construction of immorality in AS 14.20.170(a) (2) was incorrect in light of the relevant legislation which has been enacted since this court’s original decision in the case at bar was rendered.
Such an analysis and conclusion is not, in my opinion, violative of AS 01.10.090’s mandate that “No statute is retrospective unless expressly declared therein.” It is not unreasonable to assume that the Supreme Court of the United States was aware of the “general rule on retrospective operation of statutes embodied in AS 01.10.-090” when it remanded the case. Here the three statutory changes were enacted subsequently to, and in relation to, a specific controversy concerning the construction of the term “immorality” as a cause for non-retention. In such circumstances I am of the view that the three statutes can properly be looked to as legislative interpretations of .the original AS 14.20.170(a) (2).31 I do not think that the fact the 1957 legislature rejected the “crime of moral turpitude”, definition in favor of the “tending to bring into public disgrace or disrespect” definition precludes the result I reach. The fact of this rejection does not mean that the legislature envisioned that the “tending to bring” definition of immorality would be applied to speech as it was in the case.at bar. This last comment leads to the final point I wish to discuss, namely, that of free speech.
AS TO FREEDOM OF SPEECH
In the Declaration of Rights article of the Alaska Constitution, freedom of speech is guaranteed to the people of Alaska by the following provision:
Every person may freely speak, write, and publish on all subjects, being re*620sponsible for the abuse of that right.32
In my view, the maj ority’s conclusion that Watts’ conversation with the Framptons was immoral and therefore a cause for his nonretention had denied him his freedom (of speech under both the Alaska Consti'tution and the 1st and 14th Amendments to the United States Constitution.33
.. The philosophical basis of the role that free speech plays in a democratic society has been magnificently stated by Justice Holmes in his dissenting opinion in Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173, 1180 (1919), where he said:
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas— that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expressions of opinions that we loathe * * *.34
An equally cogent statement of the principles underlying the concept of free speech in our society is that of Justice Brandéis in his concurring opinion in Whitney v. People of State of California, 274 U.S. 357, 375-76, 47 S.Ct. 641, 648, 71 L.Ed. 1095, 1105-06 (1927):
Those who won our independence * * * believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing, the occasional tyrannies of governing majorities, they amended the Constitution so that *621free speech and assembly should be guaranteed.35 (Emphasis added.)
These principles of freedom of speech articulated in the writing of Justice Holmes and Justice Brandéis are appropriately relevant to analysis of the theory of our own state government and the role which the principle of freedom of speech should have in the democratic society provided for in the Constitution of Alaska.
Freedom of speech is the basic tenet of a self-governing democratic society36 and has been guaranteed to the people of the State of Alaska by the framers of our constitution. For a democratic society to function it is imperative that the public be informed, and have made available to it reasonable means of obtaining information, on all public issues. And it is here that the principle of freedom of expression plays its crucial part in enabling our citizens to participate in the decision making processes of our democratic society.37
In regard to the content of permissible public debate, I believe the statement of the Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686, 701 (1964), is apposite:
Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.38
With these principles in mind, it is appropriate to examine the role that education performs in our current society. Few would contest that the education of our people is *622one of the paramount functions of our state government; is essential in the attainment of a responsible citizenry and to the development of the individual.39 The role of the teacher in this country’s system of education, and in turn education’s part in a democratic society, is articulated by Justice Frankfurter in his concurring opinion in Wieman v. Updegraff, 344 U.S. 183, 196— 197, 73 S.Ct. 215, 221, 97 L.Ed. 216, 224-225 (1952), in the following manner:
To regard teachers — in our entire educational system, from the primary grades to the university — as the priests of our democracy is therefore not to indulge in hyperbole. It is the special task of teachers to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens, who, in turn, make possible an enlightened and effective public opinion. Teachers must fulfill their function by precept and practice, by the very atmosphere which they generate; they must be exemplars of open-mindedness and free inquiry. They cannot carry out their noble task if the conditions for the practice of a responsible and critical mind are denied to them. * * * They must be free to sift evanescent doctrine, qualified by time and circumstances, from that restless, enduring process of extending the bounds of understanding and wisdom, to assure which the freedoms of thought, of speech, of inquiry, of worship are guaranteed by the Constitution of the United States against infraction by national or State government.40
It is on the basis of the foregoing that I dissent from the majority’s treatment of the free speech issue as it relates to appellant Watts.41 The majority holds that since the “constitutional question” is close it chooses to resolve doubts in appellant Blue’s favor, particularly where the record contains “no evidence that false or misleading statements were made.” Yet Watts’ constitutional rights of freedom of speech remains un-vindicated because he spoke “on school premises”, “during school hours”, (a highly doubtful conclusion of the majority’s) “to support a private move to oust the Superintendent”, and because this conduct was “immoral.” It is undisputed that Watts made no false or misleading statement to the Framptons. I fail to 'discern the constitutional distinction upon which Watts’ speech is denied the very protection the majority now accords to Blue’s talk to the longshoremen.
The majority’s holding goes a long way in stifling any movement for reform or change in our educational system which happens to originate in the mind of an in*623dividual teacher. Under their view, before a teacher could constitutionally attempt to gather support to bring about a change in school administrators, such a goal must have had already attained the status of a public goal. As to any given facet of our educational system, diverse opinions and philosophies are held by the people of this state. The effect of the majority’s decision is to discourage the one group that is most intimately aware of the workings and problems of our educational system from making their views known on this most vital of public issues.42 The majority’s attitude is summed up by their reliance upon Adler v. Board of Education43 and its rationale that even though one is removed from his employment in government service, he is not thereby denied any constitutional rights (i. e., free speech in particular).44
I believe that the majority’s decision has denied Watts his constitutional right to speak freely as guaranteed by both the Alaska Constitution and the 1st and 14th Amendments to the United States Constitution. Watts had the constitutional right, whether erroneous or not, to be critical of his superintendent; to discuss with his fellow teachers the possibility of effectuating the superintendent’s removal and to solicit the support of his fellow teachers for his views.45
One of the most important functions of this court is to assure that constitutional rights are vindicated. By today’s decision the right of free speech in this state has sustained a serious encroachment. Apparently the principles that free speech encompasses “uninhibited”, “robust”, and “wide-open” debate on public issues has been shunted aside. In its' place has been substituted a holding that cannot fail to curtail discussion among those most intimately concerned with this state’s educational system.
. In his oral opinion pertaining to this issue, Judge Fitzgerald said:
. See the brief filed with this court prior to our initial decision in Watts v. Seward School Bd., 395 P.2d 372 (Alaska 1964).
. Ibid.
. Watts v. Seward School Bd., 381 U.S. 126, 85 S.Ct. 1321, 14 L.Ed.2d 261 (1965).
. Similarly no issue is made of Judge Fitzgerald’s holding that appellants’ circulari-zation and adherence to the petition for recall of the Seward School Board was not immoral conduct as a matter of law.
. 364 P.2d 51, 57 (Alaska 1961).
. In support of this holding this court cited Western Life Indem. Co. of Illinois v. Rupp, 235 U.S. 261, 271, 35 S.Ct. 37, 59 L.Bd. 220, 224 (1914); Alaska Industrial Bd. v. Chugach Elec. Ass’n, 356 U.S. 320, 324-325, 78 S.Ct. 735, 2 L.Ed.2d 785, 798 (1950).
. 400 P.2d 454, 457 (Alaska 1965).
. 395 P.2d 372, 376 (Alaska 1964).
. Accord, Sanuita v. Common Laborer’s & Hod Carriers Union, 402 P.2d 199, 203 (Alaska 1965).
. 364 P.2d 51 (Alaska 1961).
. 400 P.2d 454 (Alaska 1965).
. Further reference mil be made to the May 18, 1959, Open Letter in conjunction with discussion of other issues.
.Mrs. Frampton’s version of this conversation was the same with the exception that she testified that she said she would not join and “I asked, what has Mr. Fabricius done to deserve such a thing as this ? He didn’t come’ up witan answer..”
. Watts flatly denied Framptons’ version of the April 28, 1959. conversation. He also testified that the talking in question took place before school had started.
. Appeal of Batrus, 148 Pa.Super. 587, 26 A.2d 121 (1942); Negrich v. Dade County Bd. of Pub. Instruction, 143 So. 2d 498 (Fla.App.1962).
. 12 N.J.Super. 449, 79 A.2d 865 (App.Div.1951).
. AS’ 14.20.170(a) (3) provides that a cause for nonretention of a teacher is substantial noncompliance with the school laws of the state, the regulations or bylaws of tbe department, the bylaws of the district, or the written rules of the superintendent.
. Later Mr. Fabricius also testified “The Board might interpret that different than.
I do. They are the ones to decide.”
. At one point when questioned about a meeting which took place a few weeks prior to the sending of the Open Letter, the following transpired:
Mr. Walton: Sir, do you believe that the Executive committee, of the SD TA, or the members representing it, violated the same regulations when it first approached the Board with respect to non-retention of these four teachers ?
Mr. Fabricius: Well I believe they— I recall testimony which shows that they sent me a letter at the same time.
Mr. Walton: Is that what E7 provides for?
Mr. Fabricius: Well, That would be one way of providing for it.
Mr. Walton: Doesn’t it say that all grievances shall be submitted to the Board through the Superintendent?
Mr. Fabricius: I believe if you go further along you will see that they may at the same time be sent to members of the Board.
. AS 14.20.090(2) (SIA1965, ch. 41, § 1) defined immorality for purposes of revocation
as the commission of an act which, under the laws of the state, constitutes a crime involving moral turpitude.
AS 14.20.095 (SLA1965, ch. 14) added a new section to our education laws. This act provides:
Right to Comment and Criticize Not to he Restricted. No rule or regulation of the commissioner of education, a local school board, or local school administrator may restrict or modify the right of a teacher to engage in comment and criticism outside school hours, relative to school administrators, members of the governing body of any school or school district, any other public official, or any school employee, to the same extent that any private individual may exercise the right.
. Watts v. Seward School Bd., 381 U.S. 126, 127, 85 S.Ct. 1321, 1322, 14 L.Ed.2d 261, 262 (1965).
. As has been pointed out, while the case was pending before this court, on remand, the Alaska legislature amended AS 14.20.-170(a)⅛ definition of immorality (S.L.A. 1966, ch. 104). Immorality for purposes of nonretention is now defined as
. Re Sanford Pork & Tool Co., 160 U.S. 247, 255, 16 S.Ct. 291, 293, 40 L.Ed. 414, 416 (1895). Writing for the Supreme Court, Mr. Justice Gray stated: 1
When a case has been once decided by this court on appeal, and remanded to the circuit court, whatever was before this court, and disposed of by its decree, is considered as finally settled. The circuit court is hound by the decree as the law of the case, and must carry it into execution according to the mandate. ,;
. See Hart & Wechsler, The Federal Courts and The Federal System, 420 (1953); Schuylkill Trust Co. v. Commonwealth of Pennsylvania, 302 U.S. 506, 512, 58 S.Ct. 295, 82 L.Ed. 392, 396 (1938); Georgia Ry. & Elec. Co. v. City of Decatur, 297 U.S. 620, 623, 56 S.Ct. 606, 80 L.Ed. 925, 927 (1936); Western States Mach. Co. v. S.S. Hepworth Co., 152 F.2d 79, 81 (2d Cir. 1945), 65 S.Ct. 1414.
In Hart & Wechsler, ibid., the authors state:
When the Supreme Court reverses the judgment of a state court, it normally *618remands the cause for proceedings not inconsistent’ with the Court’s opinion. This mandate leaves the state court free to pass on any other undetermined questions, or even to alter its determination of underlying state law.
. Watts, Watts & Co. v. Unione Austriaca, 248 U.S. 9, 21, 39 S.Ct. 1, 2, 63 L. Ed. 100, 101 (1918). See also Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 541-542, 61 S.Ct. 347, 85 L. Ed. 327, 329 (1941); Carpenter v. Wabash Ry., 309 U.S. 23, 27, 60 S.Ct. 416 84 L.Ed. 558, 561 (1940); Patterson v. State of Alabama, 294 U.S. 600, 607, 55 S.Ct. 575, 79 L.Ed. 1082, 1086 (1935); Gulf, C. & S. F. Ry. v. Dennis, 224 U.S. 503, 507, 32 S.Ct. 542, 56 L.Ed. 860, 862 (1912); Dinsmore v. Southern Express Co., 183 U.S. 115, 22 S.Ct. 45, 46 L.Ed. 111, 113 (1901); Brownell v. Kaufman, 102 U.S.App.D.C. 133, 251 F.2d 374, 375 (1957); NLRB v. Continental Baking Co., 221 F.2d 427, 432 (8th Cir. 1955); NLRB v. National Gas Co., 215 F.2d 160, 162-63 (8th Cir. 1954) ; State of Washington v. United States, 214 F.2d 33, 46-47 (9th Cir.), cert. denied, 348 U.S. 862, 75 S.Ct. 86, 99 L.Ed. 679-80 (1954); Zank v. Landon, 205 F.2d 615, 616 (9th Cir. 1953); McMahan v. Hunter, 179 F.2d 661, 663 (10th Cir.), cert. denied, 339 U.S. 968, 70 S.Ct. 985, 94 L.Ed. 1376 (1950); Schaff v. R. W. Claxton, Inc., 79 U.S.App.D.C. 207, 144 F.2d 532, 533 (1944).
In Patterson v. State of Alabama ibid., Mr. Chief Justice Hughes said:
[W]e have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered.
This statement was adopted in its entirety in the Schaff case by Associate Justice Edgerton.
. 116 F.2d 312, 317 (1st Cir. 1940).
. See Kaku Nagano v. Brownell, 212 F.2d 262, 263 (7th Cir. 1954), where the court, in reference to the law of the case rule, stated:
In other words, though the rule that what is said on appeal becomes the law of the case is not an iron-clad rule which denies power in the court to correct its manifest error, it is one of sound policy.
To the same effect, see General Am. Life Ins. Co. v. Anderson, 156 E.2d 615, 619 (6th Cir. 1946); Commissioner of Internal Revenue v. Nechter, 143 F.2d 484, 486 (7th Cir.), cert, denied, 323 U.S. 759, 65 S.Ct. 92, 89 L.Ed. 607 (1944); Brown v. Gessellschaft Fur Drahtlose Tel., 70 App.D.C. 94, 104 E.2d 227, 228 (1939); In re Hallbom’s Estate, 189 Minn. 383, 249 N.W. 417, 418 (1933), aff’d sub nom. Pagel v. Pagel, 291 U.S. -473, 54 S.Ct. 497, 78 L.Ed. 921 (1934).
. Hoffman v. State, 404 P.2d 644, 646 (Alaska 1963); Territory of Alaska v. Craig Enterprises, Inc., 355 P.2d 397, 403 (Alaska 1960).
. See 1 Sutherland, Statutory Construction § 1931 (3d ed. 1943); School Dist. No. 18 v. Pondera County, 89 Mont. 342, 297 P. 498 (1931); Hintz v. Zion Evangelical United Brethern Church, 13 Wis. 2d 439, 109 N.W.2d 61 (1961) ; Kennedy v. Truss, 1 Terry 424, 40 Del. 424, 13 A.2d 431, (Super.Ct.1940).
. Alaska Const, art. I, § 5. See also the 1st and 14th Amendments to the United States Constitution.
. I have shown previously why I believe the issue of appellants’ immorality in regard to the Open Letter is not properly before this court. Therefore, this discussion of free speech will be limited essentially to the majority’s conclusion that Watts’ constitutional rights were not infringed.
. In 1859, John Stuart Mill wrote:
The opinion which it is attempted to suppress by authority may possibly be true. Those who desire to suppress it, of course deny its truth; but they are not infallible. They have no authority to decide the question for all mankind, and exclude every other person from the means of judging. To refuse a hearing to an opinion, because they are sure that it is false, is to assume that their certainty is the same thing as absolute certainty. All silencing of discussion is an assumption of infallibility. Its condemnation may be allowed to rest on this common argument, not the worse for being common. . . . John Stuart Mill, On Liberty 15 (McCallum ed. 1946).
. See also Justice Black’s concurring opinion in Barenblatt v. United States, 360 U.S. 109, 145-146, 79 S.Ct. 1081, 1103, 3 L.Ed.2d 1115, 1140 (1959), where he said:
The First Amendment means to me, however, that the only constitutional way our Government can preserve itself is to leave its people the fullest possible freedom to praise, criticize or discuss, as they see fit, all governmental policies and to suggest, if they desire, that even its most fundamental postulates are bad and should be changed; ■“Therein lies the security of the Republic, the very foundation of constitutional government.’ On that premise it has grown to greatness. Our Constitution assumes that the common sense of the people and their attachment to our country will enable them, after free discussion, to withstand ideas that are wrong.
See also Justice Black’s concurring opinion in Wieman v. Updegraff, 344 U.S. 183, 193, 73 S.Ct. 215, 97 L.Ed. 216, 223 (1952).
. See Meiklejolm, Free Speech and It.s Relation to Self-Government, (1948) :
The principle of the freedom of speech springs from the necessities of the program ,of self-government. It is not a Law of Nature or of Reason in the abstract. It is ,a deduction from the basic American agreement that public issues shall be decided by universal suffrage.
. See Frantz, The First Amendment in The Balance, 71 Yale L.J. 1424 (1962); Emerson, Toward A General Theory of The First Amendment, 72 Yale L.J. 877 (1963).
. It is also of significance that Justice Brennan, in writing for the court, said:
That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need * * * to survive,’ ⅝ * ⅜. 376 U.S. at 271-72, 84 S.Ct. at 721, 11 L.Ed.2d at 701.
Note in Garrison v. State of Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 216, 13 L. Ed.2d 125, 133 (1964), Justice Brennan wrote:
[Ojnly those false statements made with the high degree of awareness of their probable falsity demanded by New 'York Times may be the subject of either civil or criminal sanctions.
. See Chief Justice Warren’s opinion in the school segregation case, Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873, 880 (1954), where these views were voiced in the following manner:
Today, education is perhaps the most important function of state and local governments.. Compulsory school attendance laws and the great expenditures for education both demonstrate our *622recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities ⅜ * *. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.
. Justice Frankfurter also wrote in Wie-man v. Updegraff:
That our democracy ultimately rests on public opinion is a platitude of speech but not a commonplace in action. Public opinion is the ultimate reliance of our society only if it be disciplined and responsible. It can be disciplined and responsible only if habits of open-mindedness and of critical inquiry: are acquired in the formative years of our citizens. The process of education has naturally enough been the basis of hope for tbe perduranee of our democracy on the part of all our great leaders, from Thomas Jefferson onwards.
. Since I have concluded that appellants-did not violate Regulation E-7 of the Seward School Board, I consider it unnecessary to deal with the majority’s assertion that “There is no constitutional question associated with the Board’s conclusion that publication and circulation of the Open Letter to the general public was substantial non-compliance with Board Regulation E(7).” On the contrary, I am of the opinion that there are constitutional questions of free speech inherent in this issue, particularly in light of the circumstances which I have previously outlined and also in view of the fact that the regulations in no way provided access to public opinion on public issues.
. I agree that any school system must have the means of maintaining proper discipline, screening undesirable teachers, and removing incompetent teachers. If it is necessary to accomplish this by means of a “catch-all” language, then school boards have authority to enact such catch-all regulation, violations of which could be the basis of statutory nonretention or revocation of a teacher’s certificate.
. 342 U.S. 485, 72 S.Ct. 380, 90 L.Ed. 517 (1952). See also Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959); Sweezy v. State of New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed. 2d 1311 (1957); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952), for post Adler decisions of the Supreme Court in the area of academic freedom. In light of these subse-. quent decisions, I question whether Adler would receive the same treatment today.
. See Professor Chafee’s answer to the Adler philosophy in Thirty-Five Tears With Freedom Of Speech, 1 Kan.L.Rev.:
I am disturbed by the common assumption that deprivation of a job connected with the government is not a substantial loss of freedom. The theory is that governmental activity is a special sort of thing and not a general privilege; hence the ousted individual is simply thrust out of a small corner of life, with plenty of other places left open to him. Thus, in sustaining the New York Feinberg Law, the Supreme Court reasoned that a school teacher is not deprived of freedom of speech and assembly when he is thrown out of the public schools. Adler v. Board of Education, supra note 67. In short, when a teacher can think and talk as much as he likes by merely giving up a government job, this is freedom.
Such a theory seems to me to assume what is not so. The man was trained to be a public school teacher and to spend his life in that profession. Since thinking and talking are his business, restrictions on them as a condition of holding his job are peculiarly repugnant, while it is like cutting off his hand for him to go elsewhere. And where else? Private schools are fully staffed and unlikely to take a man who has quit in a controversy. A school teacher is not prepared for a trade and he is too old to make a fresh start. The Court’s reasoning would logically make out that disbarment of a lawyer with heterodox opinions is no infringement of freedom of speech and thought.
.This is to say no more than our legislature has already recognized by statute.